European Court of Human Rights: The limitation of MPA techniques to heterosexual couples and the refusal to allow a woman to adopt her same-sex partner’s child are not discriminatory

March 16, 2012

Grégor Puppinck
Director of the ECLJ

Strasbourg, 15 March 2012. In today’s Chamber judgment in the case of GAS et DUBOIS c. France(Requête no 25951/07), the European Court of Human Rights held, by six votes to one, that there had been no violation of the European Convention on Human Rights by the limitation of MPA techniques to heterosexual couples and by the French refusal to allow a woman to adopt her same-sex partner’s child.

This ECLJ welcomes this ruling; it provides important specifications on the issue of adoption and artificial procreation for homosexual partners. It will have a positive impact on the current negotiations by the Committee of Ministers of the Council of Europe on the “Recommendation on the Rights and Legal Status of Children and Parental Responsibilities”, as well as on a number of other cases pending before the ECtHR. Grégor Puppinck, Director of the ECLJ, analyses this ruling as a severe defeat for the LGBT rights advocates.
The case concerns the refusal by the French Courts of a woman’s application to adopt the child that her “female partner” has conceived abroad by means of medically-assisted procreation with anonymous donor. The French courts refused the adoption because it would deprive the biological mother of her rights and parental authority in respect of the child, and therefore, it would run against the child’s best interests.
The applicants challenge the refusal of Ms Gas’s application to adopt Ms Dubois’ child. They contest that this decision has infringed upon their right to respect for their private and family life and was discriminatory, in breach of Article 14 (prohibition of discrimination) read in conjunction with Article 8 (right to respect for their private and family life) of the European Convention on Human Rights.
The applicants complained in particular that Article 365 of the French Civil Code[1] laid down a rule which applies only to married couples and not to civil-partners. This rule provides that when the adoptive parent has all the rights of parental authority, unless he/she is married to the adoptee’s mother or father, as in this case only, the adoptive parent and his or her spouse may have joint parental responsibility. In other words, in case of adoption by the unmarried partner of the mother, the mother would lose her rights to the child. Considering that marriage is only available in France to couples consisting of a man and a woman and that therefore they cannot be in a position to adopt the child of their partner, the applicants claim that they are discriminated against. According to the applicants, this is “indirect discrimination” based on the parents’ sexual orientation and operated to the detriment of the child.
The application was lodged with the European Court of Human Rights on 15 June 2007. It was communicated to the French authorities on 19 May 2009 and declared admissible on 31 August 2010.
In its ruling on the merits, the Court first recalled the general principles that the differences of treatment based "on sexual orientation must be justified by particularly serious reasons"[2], and that "the margin of appreciation enjoyed by States to determine whether and to what extent differences between situations in an otherwise similar regard justify a different treatment is usually extensive when it involves taking general measures in economic or social matters"[3](§ 59 and § 60).

Then, entering into the concrete case, the Court provided very useful specifications on several important and widely discussed questions:

Adoption for same-sex couples

The applicants submit that the refusal by the French courts to grant the adoption has infringed on their right to private and family life in a discriminatory manner. They claim that as a lesbian couple they were treated differently, as opposed to heterosexual couples, regardless of whether they’re married or not.
The Court reiterates that Article 12 of the Convention, which only guarantees the right to marry to men and women, "does not require States to open marriage to a homosexual couple"[4]. The Court also notes that "the right to homosexual marriage cannot be derived from Article 14 taken in conjunction with Article 8"[5] (Non-discrimination in private and family life). Moreover, “if a State chooses to provide same-sex couples with an alternative means of recognition, it enjoys a certain margin of appreciation to decide on the exact nature of the status conferred"[6]. This particular status does not have to be identical to that conferred by marriage. Indeed, as the Court has repeatedly emphasized "marriage confers special status to those who engage in it. The right to marry is protected by Article 12 of the Convention and has social, personal and legal implications"[7]. The Court concluded that "one cannot claim when considering an adoption by the second parent that the applicants are in a legal status comparable to that of married couples."
In addition, the Court noticed that heterosexual couples in civil partnerships do not have the opportunity to adopt the child of their spouse. Therefore, the Court does not treat the applicants differently based on their sexual orientation. (§ 69)

Access to artificial reproduction techniques for lesbians
Another important contribution this judgment brings concerns the non-discriminatory character of the French law, which confines access to artificial insemination with anonymous donor (AID) to infertile heterosexual couples only.
The Court maintained that reserving this technique for infertile heterosexual couples only is not discriminatory because, firstly, the heterosexual and homosexual couples are different, and secondly, because access to this technique is "conditional to the existence of a therapeutic goal." Under French law, the treatment should aim to remedy infertility of a pathological nature which has been medically established or to prevent the transmission of a serious illness. Obviously, infertility amongst homosexual couples does not exist due to such physical causes. This is a very important position because the strategy of homosexual couples is to rely on the right to access to health care. However, their infertility is not caused by pathological factors, and so the function of medicine is not to fulfil their desire to have children. However, artificial insemination with anonymous donor sperm is not, strictly speaking, a therapeutic remedy, because the pathology of infertility is not addressed.

Subsidiarity and the difference between politics and law
This judgment is also very important in that it shows the Court’s greater respect for the principle of subsidiarity, and in particular the distinction between the domain of the European Convention and that of politics. As President Costa stated in his separate opinion issued at the end of the judgment, “there are areas where the national legislature is better placed than a European judge to change the institutions that affect the family”, He does not consider “in a matter such as this, which touches the real problems of society, [that] it falls to the Court to radically censor the legislator”.
We should welcome this deferential approach. It is a stance that was requested by the French Government at the hearing and one which falls within the broader context of the reform of the Court. In this sense, the Government had stressed at the hearing that all of the French law regulating familial relationships is based on sexual differences. Given this approach, which is a societal choice, setting up the possibility for a child to have an established relationship only in respect of two women or two men would constitute a reform of a principle that could only emanate from a Parliament.
Therefore, this judgment is a severe defeat for the homosexual lobby and the coalition of NGOs that have brought this case which, in contrast, attempts to use the European Court to impose, from above, its interests and choices.

This judgment is in the context of the ongoing negotiations within the Committee of Ministers on the draft "Recommendation on the Rights and Legal Status of Children and Parental Responsibilities." This recommendation aims to define a number of new common principles “updating” European Family Law to the social and scientific changes that have occurred in the past decades in parts of Europe in relation to family and procreation. The recommendation especially focuses on the establishment of affiliation in the context of unmarried couples and medically assisted procreation, including surrogacy motherhood, for both different and same-sex couples. Last October 2011, the European Committee on Legal Co-operation (CDCJ) of the Council of Europe decided during intense negotiations to withdraw from the draft Recommendation a provision (Principle 17 § 3) that was precisely aimed at recommending to member States the establishment of maternal affiliation for a woman who is the spouse, registered partner, or the co-habiting partner of a mother whose child was conceived as a result of medically assisted procreation.[8] Only Norway, Sweden and the Netherlands opposed publicly to this removal.

Today’s judgment from the European Court of Human Rights confirms the decision adopted by the Member States on this issue, and should have a positive impact on futures negotiations and judgments of the Court

The European Centre for Law and Justice is an international, Non-Governmental Organization dedicated to the promotion and protection of human rights in Europe and worldwide. The ECLJ holds special Consultative Status before the United Nations/ECOSOC since 2007. The ECLJ engages legal, legislative, and cultural issues by implementing an effective strategy of advocacy, education, and litigation. The ECLJ advocates in particular the protection of religious freedoms and the dignity of the person and life with the European Court of Human Rights and the other mechanisms afforded by the United Nations, the Council of Europe, the European Parliament, the Organization for Security and Cooperation in Europe (OSCE), and others. The ECLJ bases its action on “the spiritual and moral values which are the common heritage of European peoples and the true source of individual freedom, political liberty and the rule of law, principles which form the basis of all genuine democracy” (Preamble of the Statute of the Council of Europe).

[1] Article 365 of the French Civil Code “All rights pertaining to parental responsibility shall be vested in the adoptive parent alone, including the right to consent to the marriage of the adoptee, unless the adoptive parent is married to the adoptee’s mother or father. In this case, the adoptive parent and his or her spouse shall have joint parental responsibility, but the spouse shall continue to exercise it alone unless the couple make a joint declaration before the senior registrar of the Tribunal de Grande Instance to the effect that parental responsibility is to be exercised jointly. ...”

[4] The ECHR makes a reference to Schalk and Kopf, aforesaid §§49 to 63.

[5] The ECHR makes a reference to Schalk and Kopf, § 101.

[6] The ECHR makes a reference to Schalk and Kopf, § 108.

[7] The ECHR makes references to Burden, aforesaid,§ 63, and Joanna Shackell v. The United Kingdom(dec.), no 45851/99, 27 April 2000 ; see also Nylund v. Finland (déec.), no 27110/95, ECHR 1999-VI, Lindsay v. The United Kingdom (dec.), no 11089/84, 11 November 1986, and Serife Yigit c. Turkey [GC], no 3976/05, 2 November 2010.

[8] The following provision was deleted :
Principle 17.3:
[Where states also permit same-sex marriages or same-sex registered partnerships, they may provide that:
a. a woman who is the spouse or (where permitted by national law) registered partner of the mother whose child was conceived as a result of such a procedure is considered to be a legal parent, unless it is established that she did not consent to the procedure;
b. a woman who is the co-habiting partner of the mother whose child was conceived as a result of such a procedure is considered to be a legal parent provided both she and the mother give written consent, before or at the time of the procedure.]